Is "Gordon" criminal damage?

I always read comments about criminal trials through varifocal spectacles. Today's acquittal of a bunch of arrogant vandals charged with criminal damage for painting the Prime Minister's first name on a power station was no surprise. Had they engaged in criminal damage? The mere fact that they admitted daubing paint on private property would seem to prove the case. Is that enough to gain a conviction? Not by any stretch of the imagination. Why not, why is it that a jury can acquit those who freely admit the allegation made against them? The answer is partly legal and partly political.

The legal part is fairly simple and is this - the law is complicated and contradictory. We are all entitled to engage in peaceful protest if that is the course we choose to follow in putting forward our views. An act that might be criminal if done in another context can be rendered lawful if it is part of a peaceful protest. This might seem contradictory, but there is no difficulty in marrying the two legal concepts and there are many examples of it every year.

A demonstration might obstruct the highway, but there is a right to demonstrate (subject, sometimes, to obtaining permission). The offence of obstructing the highway can be outweighed by the right to demonstrate. If the demonstration becomes disorderly, the right to demonstrate can be outweighed by the need to keep the peace. A balance must be struck between the conflicting laws. That balance must first be struck by the police who have to deal with the matter on the ground and if it ends up in court it is then passed to the magistrates, judge or jury who hear the case.

Context is also important. A threatening letter sent to an individual might be construed as an assault, a letter in identical terms to an MP is likely to be viewed as part of the rough-and-tumble of political debate. It is, I suggest, right to draw a distinction between ten burly men marching on Joe Miggin's house and shouting "Death to Joe Miggins" and the same ten men marching to the Labour Party Conference and shouting "Death to Gordon Brown". One is a threat against an individual where there is no public interest in allowing the threat to be made, the other is a political demonstration.

The protest made by painting "Gordon" on a power plant involved both a clash of laws and an issue of context. It was for the jury to decide whether the law against slopping paint on someone else's property was outweighed by the right to demonstrate and it was for the jury to decide whether the context in which it was done was such that it should not be viewed as an unlawful act.

In addition there is a defence of "lawful excuse". This allows damage to be done if it prevents a greater threat from manifesting itself. It is a favourite defence of extremist nutters who perceive a fanciful risk of some catastrophe and vandalise the property of those they claim to be responsible for it. I do not know whether it was used in this case but it would not surprise me if it was.

I asked myself what I would have done had I been on the jury. Obviously I did not hear the evidence so my decision could be based only on what I have read and heard about the case. Part of me would want the Defendants to be sectioned under the Mental Health Acts for believing in the absurd theory of man-made global warming, part of me would want them imprisoned for the same dangerous idiocy. Part of me would want them acquitted because they did minimal damage while expressing views they probably hold deeply, part of me would want them convicted for going too far in making their point. Part of me would want them convicted because the act complained of added nothing to the debate, part of me would want them acquitted because it is not for me to judge whether it added anything to the debate.

And so we arrive at the political answer to the question I posed. Jury trials are not about applying the law strictly. Jury trials are part of our inefficient, deeply flawed and even more deeply ingrained system of democracy. Once every four or five years we can vote in a general election but that is not the only part we little people play in the governance of our country. We can vote also in local elections, we can lobby politicians, write articles on issues that interest us and engage in many forms of debate, all of which have the potential of affecting decisions made by those with power. We can also express our views if selected for jury service. There are very few cases each year which throw up matters of political interest but that was not always so.

Many years ago sheep rustling was a capital offence. The penalty was so out of proportion to the crime that juries regularly acquitted no matter how strong the prosecution's case. They exercised a political judgment, they decided that the law was unjust and rendered verdicts accordingly. Some argue that they had no right to do so but I disagree. The juror's oath is to "reach a true verdict according to the evidence". That phrase is not defined for the jurors, it is for them to construe it according to their consciences and judgment. If the jury thinks the law is unjust the true verdict might be "not guilty".

We will never know the reasons each individual juror had for voting for an acquittal in the case of painting Gordon. Perhaps one of them felt the right to demonstrate outweighed the property rights of the owners of the power station, maybe another thought the property in question was sufficiently public to justify its use for a political slogan, one might have considered man-made global warming to be such an important matter that any act done ostensibly in its prevention is justified, another might have felt it wrong for these protesters to be prosecuted when others who commit serious crimes are let off, yet another might have viewed the demonstrators as pathetic inadequates who deserve pity, and another again might have felt it best not to make martyrs of the haplessly selfish. There could have been a hundred or more reasons for the acquittals.

You can call it a perverse verdict if you wish. I am inclined to the view that it was an example of jurors doing what they do every day, returning what they considered to be "a true verdict". And let all commentators about the case realise one thing - the decision was not in the hands of experts with a special interest to promote, nor was it in the hands of politicians with an electorate to woo, nor was it in the hands of technocrats who look only at black-letter law, it was in the hands of a random dozen picked from the electoral roll. Only those twelve people had the right to decide the case. You might think they were wrong, but they were not wrong because they were the only people in the world with the right and duty to decide the case.